Nature of the Case
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Facts
P became an apprentice sheet metal worker at the Mare Island Naval Shipyard (Mare Island). He worked in the sheet metal shop for several years and then became an engineering technician working with ventilation before retiring from Mare Island after 40 years. At the time of his death in April 1988, he had been married to Thelma L. Rutherford for 45 years, and they had 2 children. Three months before his death, Pfiled an asbestos-related personal injury action naming as defendants nineteen manufacturers and/or distributors of asbestos products, including D. P alleged that he had contracted lung cancer as a result of his exposure to Ds' asbestos products while on the job at Mare Island, and alleged causes of action for products liability, negligent and intentional infliction of emotional distress, and loss of consortium. P died of lung cancer in April 1988 and his wife Thelma L. Rutherford, and their daughter, Cheryl Rutherford Thomas (Ps) brought a wrongful death action. The case was consolidated for trial with four other actions presenting the similar claims of various other plaintiffs. Ps presented medical evidence that P had died of asbestos-related lung cancer. He had worked aboard ships around asbestos insulators at Mare Island starting in 1940. In 1985 he first noticed he would tire quickly and get out of breath easily. In 1986 P was diagnosed with lung cancer and underwent surgery. A year later a cancerous tumor was discovered in his head. He received radiation treatments but died three weeks later. P had smoked approximately a pack of cigarettes a day over a period of 30 or more years until he quit smoking in 1977. The jury returned a verdict finding that a total of $278,510 in economic damages had been incurred by Ps, and $ 280,000 in noneconomic damages suffered by Ps as a result of P's death. D has not challenged the damages phase jury's verdict nor has it challenged Ps' total award of economic and noneconomic damages. The second liability phase involved only issues of D's percentage of fault and apportionment of damages. Ps wanted a burden-shifting instruction issued: If the plaintiff has proved that a particular asbestos supplier's product was 'defective,' that the plaintiff's injuries or death were legally caused by asbestos exposure generally, and that he was exposed to asbestos fibers from the defendant's product, the burden then shifts to the defendant to prove, if it can, that its product was not a legal cause of the plaintiff's injuries or death. Each plaintiff sought to show that he had been exposed to asbestos fibers from D's product Kaylo. Medical testimony was also presented to establish that Ps' asbestos-related disease was 'dose-related,' i.e., that the risk of developing asbestos-related cancer increased as the total occupational dose of inhaled asbestos fibers increased. D's own medical expert, Dr. Elliot Hinckes, testified that asbestos-related cancers are dose-responsive and that if a worker had occupational exposure to many different asbestos-containing products, each such exposure would contribute to the degree of risk of contracting asbestos-related lung cancer, although he testified further that a very light or brief exposure could be considered 'insignificant or at least nearly so' in the 'context' of other, very heavy exposures. There was no evidence in this case that P had been exposed predominantly to any one kind or brand of asbestos product. P's asbestos exposure was specifically related to industrial-occupational exposure, i.e., exposure to asbestos products while they were being installed or removed at Mare Island. Undisputed evidence indicates that smoking sharply increases the risk of lung disease, including lung cancer, and works 'synergistically' with asbestos exposure to enhance the severity of resulting damage to the lungs. D urged that under Proposition 51, the proportionate fault of tobacco companies for Ps' injuries should further reduce, to that extent, D's liability for Ps' noneconomic damages. The trial court ruled that no 'tobacco company defense' could be presented because the tobacco companies 'aren't on trial here,' and excluded all proffered evidence concerning the fault of cigarette manufacturers, refusing to allow a verdict form in which fault could be apportioned to those entities. In P's case, the jury apportioned fault as follows: 1.2 percent to D, 2.5 percent to P himself, and 96.3 percent to the remaining entities to which the jury was allowed to assign fault. After further adjustment for pretrial settlements, the Ps recovered a net judgment of $177,047 in economic damages and $2,160 in noneconomic damages against D. D appealed. D asserted as trial errors the denial of its tobacco company defense and the giving of the burden-shifting instruction. The Court of Appeal reversed in that the trial court's rejection of the proffered tobacco company defense in these consolidated actions was a prejudicial error. The Court of Appeal ruling held that the burden-shifting instruction was 'erroneous' and should not again be given on retrial. Ps appealed.
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